LEASE AGREEMENT
1. PARTIES. This Lease, dated for reference purposes only, January 11, 1996,
is made by and between SOUTH BAY/FORTRAN, a California limited partnership,
("Landlord"), and NOVELLUS SYSTEMS, INC., a California corporation
("Tenant").
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, upon the terms and conditions hereinafter set forth, those
certain premises (the "Premises") presently known, as of the date of this
Lease, as 4415 Fortran Court, situated in the City of San Jose, County of
Santa Clara, State of California, described as follows: for purposes of
this Lease, the rentable square footage area of the Building shall be
deemed to be approximately thirty-eight thousand two hundred eighty-four
(38,284) square feet (the "Building"), as shown cross-hatched on the site
plan (the "Site Plan") attached hereto as EXHIBIT "A". The Building is
located on a larger parcel (the "Parcel") containing other buildings (the
"Buildings") as shown on the Site Plan, which Parcel is described in
EXHIBIT "B" attached hereto. In the event Landlord subdivides the Parcel in
the future into two (2) or more legal parcels, the term "Parcel" shall
thereafter refer to the legal parcel on which the Premises are located.
Landlord shall deliver the premises in good condition and repair, including
the roof, heating, ventilation and air conditioning (HVAC) equipment and
structural integrity of the building and in compliance with all
governmental codes, ordinances and statues, including those applicable
under the Americans of Disabilities Act (ADA). Landlord shall not be
required to make any alterations, additions or improvements to the Premises
and the Premises shall be leased to Tenant in an "as-is" condition, except
for those improvements as defined as "Landlord's Improvements" in EXHIBIT
"C" attached hereto and made a part hereof. THE EXACT SQUARE FOOTAGE SHALL
BE DETERMINED UPON FINAL APPROVAL OF THE FINAL TENANT IMPROVEMENT PLANS,
WHICH TENANT DESIRES TO CONSTRUCT AT ITS SOLE COST, PURSUANT TO EXHIBIT "D"
ATTACHED HERETO.
3. TERM. The term of this Lease ("Lease Term") shall be for two (2) years,
commencing upon the earlier of i) RECEIPT OF A CERTIFICATE OF OCCUPANCY OR
FINAL BUILDING PERMIT, upon completion of tenant improvements, as outlined
in EXHIBITS "C" AND "D" attached hereto, or, ii) April 15, 1996, (the
"Commencement Date") and ending two (2) years thereafter, unless sooner
terminated pursuant to any provision hereof. Notwithstanding said scheduled
Commencement Date, if for any reason Landlord cannot deliver possession of
the Premises to Tenant on said date, Landlord shall not be subject to any
liability therefor, nor shall such failure affect the validity of this
Lease or the obligations of Tenant hereunder, but in such case Tenant shall
not be obligated to pay rent until possession of the Premises is tendered
to Tenant and the commencement and termination dates of this Lease shall be
revised to conform to the date of Landlord's delivery of possession. In the
event Landlord shall permit Tenant to occupy the Premises prior to the
Commencement Date, such occupancy shall be subject to all the provisions of
this Lease, including the obligation to pay the Monthly Installment of
rent, and Common Area Charges.
4. RENT.
A. TIME OF PAYMENT. Tenant shall pay to Landlord as rent for the Premises
the sum specified in Paragraph 4.B below (the "Monthly Installment")
each month in advance on the first day of each calendar month, without
deduction or offset, prior notice or demand, commencing on the
Commencement Date and continuing through the term of this Lease,
together with such additional rents as are payable by Tenant to
Landlord under the terms of this Lease. The Monthly Installment for
any period during the lease Term which period is less than one (1)
full month shall be a prorata portion of the Monthly Installment based
upon a thirty (30) day month.
B. MONTHLY INSTALLMENT. The Monthly Instalment of rent payable each month
during the term shall be Twenty Thousand Six Hundred Seventy-Three and
36/100ths Dollars ($20,673.36) per month.
1
C. LATE CHARGE. Tenant acknowledges that late payment by Tenant to
Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs includes, but are
not limited to, processing and accounting charges, and late charges
which may be imposed on Landlord by the terms of any mortgage or deed
of trust covering the Premises. Accordingly, if any installment of
rent or any other sum due from Tenant shall not be received by
Landlord within ten (10) days after such amount shall be due, Tenant
shall pay to Landlord, as additional rent, a late charge equal to six
percent (6%) of such overdue amount. The parties hereby agree that
such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any of its other rights
and remedies granted hereunder.
D. ADDITIONAL RENT. All taxes, insurance premiums, Common Area Charges,
late charges, costs and expenses which Tenant is required to pay
hereunder, together with all interest and penalties that may accrue
thereon in the event of Tenant's failure to pay such amounts, and all
reasonable damages, costs and attorneys' fees and expenses which
Landlord may incur by reason of any default of Tenant or failure on
Tenant's part to comply with the terms of this Lease, shall be deemed
to be additional rent ("Additional Rent") and shall be paid in
addition to the Monthly Installment of rent, and, in the event of
nonpayment of the Monthly Installment of rent.
E. PLACE OF PAYMENT. Rent shall be payable in lawful money of the United
States of America to Landlord at 511 Division Street, Campbell CA, or
to such other person(s) or at such other place(s) as Landlord may
designate in writing.
F. ADVANCE PAYMENT. Concurrently with the execution of this Lease, Tenant
shall pay the Landlord the sum of Twenty Thousand Six Hundred Seventy-
three and 36/100ths Dollars ($20,673.36) to be applied to the Monthly Instalment
of rent first accruing under this Lease.
5. SECURITY DEPOSIT. Tenant shall deposit the sum of Twenty Thousand Six
Hundred Seventy-three and 36/100ths Dollars ($20,673.36) (the "Security
Deposit") upon execution of this Lease, to secure the faithful performance
by Tenant of each term, covenant and condition of this Lease. If Tenant
shall at any time fail to make any payment or fail to keep or perform any
term, covenant or condition on its part to be made or performed or kept
under this Lease, Landlord may, but shall not be obligated to and without
waiving or releasing Tenant from any obligation under this Lease, use,
apply or retain the whole or any part of the Security Deposit (A) to the
extent of any sum due to Landlord; (B) to make any required payment on
Tenant's behalf; or (C) to compensate Landlord for any loss, damages,
attorneys' fees or expense sustained by Landlord due to Tenant's default.
In such event, Tenant shall, within five BUSINESS (5) days of written
demand by Landlord, remit to Landlord sufficient funds to restore the
Security Deposit to its original sum. No interest shall accrue on the
Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its general funds. Should Tenant comply with all the
terms, covenants, and conditions of this Lease and at the end of the term
of this Lease leave the Premises in the condition required by this Lease,
then said Security Deposit, less any sums owing to Landlord, shall be
returned to Tenant within thirty (30) days after the termination of this
Lease and vacancy of the Premises by Tenant.
2
6. USE OF PREMISES. Tenant shall use the Premises only in conformance with
applicable governmental laws, regulations, rules and ordinances for the
purpose of office, research & development, light manufacturing,
distribution and warehousing of products for the electronics industry, and
for no other purpose. Tenant shall indemnify, protect, defend, and hold
Landlord harmless against any loss, expense, damage, attorneys' fees or
liability arising out of the failure of Tenant to comply with any
applicable law. Tenant shall not commit or suffer to be committed, any
waste upon the Premises, or any nuisance, or other acts or things which may
disturb the quiet enjoyment of any other tenant in the buildings adjacent
to the Premises, or allow any sale by auction upon the Premises, or allow
the Premises to be used for any unlawful purpose, or place any loads upon
the floor, walls or ceiling which endanger the structure, or place any
harmful liquids in the drainage system of the Building. No waste materials
or refuse shall be dumped upon or permitted to remain upon any part of the
Premises outside of the Building proper, except in trash containers placed
inside exterior enclosures designated for that purpose by Landlord. No
materials, supplies, equipment, finished products or semi-finished
products, raw materials or articles of any nature shall be stored upon or
permitted to remain on any portion of the Premises outside of the Building
proper. Tenant shall strictly comply with the provisions of Paragraph 39
below.
7. TAXES AND ASSESSMENTS.
A. TENANT'S PROPERTY. Tenant shall pay before delinquency any and all
taxes and assessment, license fees and public charges levied, assessed
or imposed upon or against Tenant's fixtures, equipment, furnishings,
furniture, appliances and personal property installed or located on or
within the Premises. Tenant shall cause said fixtures, equipment,
furnishings, furniture, appliances and personal property to be
assessed and billed separately from the real property of Landlord. If
any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes
attributable to Tenant within ten (10) days after receipt of a written
statement from Landlord setting forth the taxes applicable to Tenant's
property.
B. PROPERTY TAXES. Tenant shall pay, as additional rent, its Pro Rata
Share (as defined below) of all Property Taxes levied or assessed with
respect to the land comprising the Parcel and with respect to all
buildings and improvements located on the Parcel which become due or
accrue during the term of this Lease. Tenant shall pay such Property
Taxes to Landlord within twenty (20) days after receipt of billing.
Provided that Landlord bills Tenant at least thirty (30) days prior to
the delinquency date of such Property Taxes, Tenant shall pay such
Property Taxes to Landlord at least ten (10) days prior to the
delinquency date, and if Tenant fails to do so, Tenant shall reimburse
Landlord, on demand, for all interest, late fees and penalties that
the taxing authority charges Landlord. In the event Landlord's
mortgagee requires an impound for Property Taxes, then on the first
day of each month during the Lease Term, Tenant shall pay Landlord one
twelfth (1/12) of its annual share of such Property Taxes. IF PAYMENT
IS MADE ON A MONTHLY BASIS, LANDLORD SHALL ANNUALLY RECONCILE SAID
PAYMENTS VERSUS THE ACTUAL PROPERTY TAX BILL FOR THE PERIOD IN
QUESTION AND EITHER REIMBURSE TENANT FOR ANY OVERPAYMENTS OR BILL
TENANT FOR ANY PAYMENTS LESS THAN THE ACTUAL BILL. Tenant's liability
hereunder shall be prorated to reflect the Commencement and
termination dates of this Lease. Tenant's share of the Property Taxes
shall be determined by Landlord from the respective valuation assigned
in the Assessor's worksheet or such other information as may be
reasonably available. Landlord's reasonable determination thereof, in
good faith, shall be conclusive.
As used in this Lease, the term "Tenant's Pro Rata Share" shall mean a
fraction, expressed as a percentage, the numerator of which is the
number of square feet of floor space contained in the Premises (38,284
SQUARE FEET) and the denominator of which is the number of square feet
of floor space contained in all of the Buildings located on the Parcel
(295,529 SQUARE FEET). As of the Commencement Date, Tenant's Pro Rata
Share is twelve and ninety-five hundredths percent (12.95%).
3
For the purpose of this Lease, "Property Taxes" means and includes all
taxes, assessments (including, but not limited to, assessments for
public improvements or benefits), taxes based on vehicles, utilizing
parking areas, taxes based or measured by the rent paid, payable or
received under this Lease, taxes on the value, use, or occupancy of
the Premises, the Buildings and/or the Parcel, Environmental
Surcharges, and all other governmental impositions and charges of
every kind and nature whatsoever, whether or not customary or within
the contemplation of the parties hereto and regardless of whether the
same shall be extraordinary or ordinary, general or special,
unforeseen or foreseen, or similar or dissimilar to any of the
foregoing which, at any time during the Lease Term, shall be
applicable to the Premises, the Buildings and/or the Parcel or
assessed, levied or imposed upon the Premises, the Buildings and/or
the Parcel, or become due and payable and a lien or charge upon the
Premises, the Buildings and/or the Parcel, or any part thereof, under
or by virtue of any present or future laws, statutes, ordinances,
regulations or other requirements of any governmental authority
whatsoever. The term "Environmental Surcharges" shall mean and include
any and all expenses, taxes, charges or penalties imposed by the
Federal Department of Energy, the Federal Environmental protection
Agency, the Federal Clean Air Act, or any regulations promulgated
thereunder or any other local, state or federal governmental agency or
entity now or hereafter vested with the power to impose taxes,
assessments, or other types of surcharges as a means of controlling or
abating environmental pollution or the use of energy. The term
"Property Taxes" shall not include any federal, state or local net
income, estate, or inheritance tax imposed on Landlord, OR PENALTIES
AND INTEREST INCURRED BY LANDLORD'S LATE PAYMENT, UNLESS PENALTY OR
INTEREST IS SPECIFICALLY DUE TO TENANT'S LATE PAYMENT OF PROPERTY
TAXES.
C. OTHER TAXES: Tenant shall, as additional rent, pay or reimburse
Landlord for any tax based upon, allocable to, or measured by the area
of the Premises or the Buildings or the Parcel; or by the rent paid,
payable or received under this Lease; any tax upon or with respect to
the possession, leasing, operation, any tax upon or with respect to
the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy of the Premises or any portion
thereof; any privilege tax, excise tax, business and occupation tax,
gross receipts tax, sales and/or use tax, water tax, sewer tax,
employee tax, occupational license tax imposed upon Landlord or Tenant
with respect to the Premises; any tax upon this transaction or any
document to which Tenant is a party creating or transferring an
interest or an estate in the Premises.
8. INSURANCE.
A. INDEMNITY. EXCEPT FOR LANDLORD'S BREACH UNDER THIS LEASE, GROSS
NEGLIGENCE, OR WILLFUL MISCONDUCT, Tenant agrees to indemnify, protect
and defend Landlord against and hold Landlord harmless from any and
all claims, causes of action, judgements, obligations or liabilities,
and all reasonable expenses incurred in investigating or resisting the
same (including reasonable attorneys' fees), on account of, or arising
out of, AND TO THE EXTENT RELATING TO TENANT'S operation, maintenance,
use or occupancy of the Premises and all areas appurtenant thereto.
This Lease is made on the express understanding that Landlord shall
not be liable for, or suffer loss by reason of, injury to person or
property, form whatever cause (except for active negligence or willful
misconduct of Landlord), which in any way may be connected with the
operation, use or occupancy of the Premises specifically including,
without limitation, any liability for injury to the person or property
of Tenant, its agents, officers, employees, licensees and invitees.
B. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive
public liability insurance insuring Landlord and Tenant against claims
and liabilities arising out of the operation, use, or occupancy of the
Premises and all areas appurtenant thereto, including parking areas.
Such insurance shall be in an amount of not less than Three Million
Dollars ($3,000,000.00) for bodily injury or death as a result of any
one occurrence and Five Hundred Thousand Dollars
4
($500,000.00) for damage to property as a result of any one
occurrence. The insurance shall be with companies approved by
Landlord, with approval Landlord agrees not to withhold unreasonably.
Tenant shall deliver to landlord, prior to possession, and at least
thirty (30) days prior to the expiration thereof, a certificate of
insurance evidencing the existence of the policy required hereunder
and such certificate shall certify that the policy (1) names Landlord
as an additional insured, (2) shall not be canceled or altered without
thirty (30) days prior written notice to Landlord, (3) insures
performance of the indemnity set forth in Paragraph 8.A above, (4) the
coverage is primary and any coverage by Landlord is in excess thereto
and (5) contains a cross-liability endorsement. Landlord may maintain
a policy or policies of comprehensive general liability insurance
insuring Landlord (and such others as are designated by Landlord),
against liability for personal injury, bodily injury, death and damage
to property occurring or resulting from an occurrence in, on or about
the Premises or the Common Area, with such limits of coverage as
Landlord may from time to time determine are reasonably necessary for
its protection. The cost of any such liability insurance maintained by
Landlord shall be a Common Area Charge and Tenant shall pay, as
additional rent, its share of such cost to Landlord as provided in
Paragraph 12 below.
C. PROPERTY INSURANCE. Landlord shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or
damage to the Premises and the Buildings, in the amount of the full
replacement value thereof, providing protection against those perils
included within the classification of "all risk" insurance, plus a
policy of rental income insurance in the amount of one hundred percent
(100%) of twelve (12) months rent (including, without limitation, sums
payable as Additional Rent), plus, at Landlord's option, flood
insurance and earthquake insurance, and any other coverages which may
be required from time to time by Landlord's mortgagee. Tenant shall
have no interest in nor any right to the proceeds of any insurance
procured by Landlord on the Premises. Tenant shall, within twenty (20)
days after receipt of billing, pay to Landlord as additional rent, the
full cost of such insurance procured and maintained by Landlord.
Tenant acknowledges that such insurance procured by Landlord shall
contain a deductible which reduces Tenant's cost for such insurance
and, in the event of loss or damage, Tenant shall be required to pay
to Landlord the amount of such deductible.
D. TENANT'S INSURANCE. Release of Landlord. Tenant acknowledges that the
insurance to be maintained by Landlord on the Premises pursuant to
Subparagraph C above will not insure any of Tenant's property.
Accordingly, Tenant, at Tenant's own expense, shall maintain in full
force and effect on all of its fixtures, equipment, leasehold
improvements and personal property in the Premises, a policy of "All
Risk" coverage insurance to the extent of at least ninety percent
(90%) of their insurable value. Tenant hereby releases Landlord, and
its partners, officers, agents employees and servants from any and all
claims, demands, losses, expenses or injuries to the Premises or to
the furnishings, fixtures, equipment, inventory or other personal
property of Tenant in, about, or upon the Premises, which are caused
by perils, events or happenings where the same are covered by the
insurance required by this Lease or which are the subject of insurance
carried by Tenant and in force at the time of such loss.
E. MUTUAL WAIVER OF SUBROGATION. TENANT AND LANDLORD HEREBY MUTUALLY
WAIVE THEIR RESPECTIVE RIGHTS OF RECOVERY AGAINST EACH OTHER OF ANY
LOSS OF OR DAMAGE TO THE PROPERTY OF EITHER PARTY, TO THE EXTENT SUCH
LOSS OR DAMAGE IS INSURED BY ANY INSURANCE POLICY REQUIRED TO BE
MAINTAINED BY THIS LEASE OR OTHERWISE IN FORCE AT THE TIME OF SUCH
LOSS OR DAMAGE. EACH PARTY SHALL OBTAIN ANY SPECIAL ENDORSEMENTS, IF
REQUIRED BY THE INSURER, WHEREBY THE INSURER WAIVES ITS RIGHT OF
SUBROGATION AGAINST THE OTHER PARTY HERETO. THE PROVISIONS OF THIS
SUBPARAGRAPH 8.3 SHALL NOT APPLY IN THOSE INSTANCES IN WHICH THE
WAIVER OF SUBROGATION WOULD CAUSE EITHER PARTY'S INSURANCE COVERAGE TO
BE VOIDED OR OTHERWISE MADE UNCOLLECTIBLE.
5
9. UTILITIES. Tenant shall pay for all water, gas, light, heat, power,
electricity, telephone, trash pickup, sewer charges and all other services
supplied to or consumed on the Premises, and all taxes and surcharges
thereon. In addition, the cost of any utility services supplied to the Common
Area or not separately metered to the Premises shall be a Common Area Charge
and Tenant shall pay its share of such costs to Landlord as provided in
Paragraph 12 below.
10. REPAIRS AND MAINTENANCE.
A. LANDLORD'S REPAIRS. Subject to provisions of Paragraph 16,
Landlord shall keep and maintain the exterior roof, structural
elements and exterior walls of the Building in good order and
repair. Landlord shall not, however, be required to maintain,
repair or replace the interior surface of exterior walls, nor
shall Landlord be required to maintain, repair or replace
windows, doors, skylights or plate glass. Landlord shall have no
obligation to make repairs under this Subparagraph until a
reasonable time after receipt of written notice from Tenant of
the need for such repairs. Tenant shall reimburse Landlord, as
additional rent, within THIRTY (30) days after receipt of
billing, for the cost of such repairs and maintenance which are
the obligation of Landlord hereunder, provided however, that
Tenant shall not be required to reimburse Landlord for the cost
of maintenance and repairs of the structural elements of the
Building unless such maintenance or repair is required because of
the negligence or willful misconduct of Tenant or its employees,
agents or invitees. As used herein, the term "structural elements
of the building" shall mean and be limited to the foundation,
footings, floor slab (bit not flooring), structural walls, and
roof structure (INCLUDING ROOFING OR ROOF MEMBRANE ONLY TO BE
INCLUDED DURING THE FIRST TWO (2) YEARS OF THE LEASE TERM, UNLESS
TENANT MAKES ANY PENETRATIONS TO THE ROOFING OR ROOF MEMBRANE AT
ANY TIME DURING THEIR TENANCY, IN WHICH CASE TENANT SHALL BE
SOLELY RESPONSIBLE FOR REPAIRS AND MAINTENANCE OF THE ROOFING
AND ROOF MEMBRANE.) UPON EXPIRATION OF THE FIRST TWO (2) YEARS OF
THE LEASE TERM, TENANT SHALL BECOME RESPONSIBLE FOR REPAIRS AND
MAINTENANCE BIT NOT REPLACEMENT OF THE ROOFING OR ROOF
MEMBRANE.
B. TENANT'S REPAIRS. Except as expressly provided in Subparagraph
A above, Tenant shall, at its sole cost, keep and maintain the
entire Premises and every part thereof, including without
limitation, the windows, window frames, plate glass, glazing,
skylights, truck doors, doors and all door hardware, the walls
and partitions, and the electrical, plumbing, lighting,
heating, ventilating and air conditioning systems and equipment
in good order, condition and repair. The term "repair" shall
include replacement, restorations and/or renewals when necessary
as well as painting. THE TERM "REPAIR" SHALL NOT INCLUDE
REPLACEMENT OF HEATING, VENTILATING AND AIR CONDITIONING
("HVAC") EQUIPMENT DURING THE FIRST TWO (2) YEARS OF THE LEASE
TERM ONLY EXCEPT ON HVAC EQUIPMENT INSTALLED BY TENANT AS PART
OF THE FINAL TENANT IMPROVEMENT PLANS PURSUANT TO EXHIBIT "D" AND
UNLESS SUCH REPLACEMENT IS DUE TO TENANT'S ABOVE "STANDARD USE",
TENANT'S MISUSE, OR TENANT'S FAILURE TO MAINTAIN THE HVAC
EQUIPMENT, AS REQUIRED BELOW. THE TERM "STANDARD USE" SHALL BE
DEFINED AS OPERATION BASED ON A NORMAL BUSINESS DAY'S HOURS, NOT
TO EXCEED TEN (10) HOURS. ANY OPERATION THAT EXCEEDS THE
"STANDARD USE" HOURS SHALL BE DEEMED TO BE "ABOVE STANDARD USE".
Tenant's obligation shall extend to all alterations, additions
and improvements to the Premises, and all fixtures and
appurtenances therein and thereto. Tenant shall, at all times
during the Lease Term, have in effect a service contract for the
maintenance of the heating, ventilating and air conditioning
("HVAC") equipment with an HVAC service contract shall provide
for periodic inspection and servicing at least once every three
(3) months during the term hereof, and Tenant shall provide
Landlord with a copy of such contract and all periodic service
reports.
Should Tenant fail to make repairs required of Tenant hereunder
forthwith upon FIFTEEN (15) DAYS WRITTEN notice from Landlord
or should Tenant fail thereafter to diligently complete the
repairs, Landlord, in addition to all other remedies available
hereunder or by law and without waiving any alternative
remedies, may make the same, and in that event,
Tenant shall reimburse Landlord as additional rent for the cost
of such maintenance or repairs within five (5) days of written
demand by Landlord
Landlord shall have no maintenance or repair obligation
whatsoever with respect to the Premises except as expressly
provided in Paragraphs 10.A and 11. Tenant hereby expressly
waives the provisions of Subsection 1 of Section 1932 and
Section 1941 and 1942 of the Civil Code of California and all
rights to make repairs at the expense of Landlord as provided
in Section 1942 of said Civil Code. There shall be no
allowance to Tenant for diminution of rental value, and no
liability on the part of Landlord (EXCEPT FOR LANDLORD'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT) by reason of inconvenience,
annoyance or injury to business arising from the making of or
the failure to make, any repairs, alternations, decorations,
additions or improvements in or to any portion of the Premises
or the Building or Common Area (or any or the areas used in
connection with the operation thereof, or in or to any
fixtures, appurtenances or equipment), or by reason of the
negligence of Tenant or any other tenant or occupant of the
Parcel. In no event shall Landlord be responsible for any
consequential damages arising or alleged to have arisen from any
of the foregoing matters. Tenant hereby agrees that Landlord
shall not be liable for injury to Tenant's business or any loss
of income therefrom or for damage to the goods, wares,
merchandise or other property of Tenant, Tenant's employees,
invitees, customers, or any other person in or about the
Premises, the Building, or the Common Area, nor shall Landlord
be liable for injury to the person of Tenant, Tenant's
employees, agents or contractors whether such damage or injury
is caused by or results from fire, steam, electricity gas,
water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any
other cause, whether the said damage or injury results from any
other cause, whether the said damage or injury results from
conditions arising upon the Premises or upon other portion of
the Building, or from other sources or places and regardless of
whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant. Landlord shall
not be liable for any damages arising from any act or neglect of
any other tenant, if any, of the Building or the Parcel.
11. COMMON AREA. Subject to the terms and conditions of this Lease and
such rules and regulations as Landlord may from time to time
REASONABLY prescribe, Tenant and Tenant's employees, invitees and
customers shall, in common with other occupants of the Parcel, and
their respective employees, invitees and customers, and others
entitled to the use thereof, have the nonexclusive right to use the
access roads, parking areas and facilities provided and designated
by Landlord for the general use and convenience of the occupants of
the Parcel, which areas and facilities are referred to herein as
"Common Area. This right shall terminate upon the termination of
this Lease. Landlord reserves the right from time to time to make
changes in the shape, size, location, amount and extent of the
Common Area. Landlord further reserves the right to promulgate such
reasonable rules and regulations relating to the use of the Common
Area, and any part or parts thereof, as Landlord may deem
appropriate for the best interest of the occupants of the Parcel.
The rules and regulations shall be binding upon Tenant upon delivery
of a copy of them to Tenant, and Tenant shall abide by them and
cooperate in their observance. Such rules and regulations may be
amended by Landlord from time to time, with or without advance
notice, and all amendments shall be effective upon delivery of a
copy of them to Tenant. Tenant shall have the non-exclusive use of
no more than one hundred fifty-three (153) of the parking spaces in
the Common Area as designated from time to time by Landlord. Tenant
shall not at any time park or permit the parking of Tenant's trucks
or other vehicles, or the trucks or other vehicles of others,
adjacent to loading areas so as to interfere in any way with the use
of such areas, nor shall Tenant at any time park or permit the
parking of Tenant's vehicles or trucks, or the vehicles or trucks of
Tenant's suppliers or others in any portion of the Common Area not
designated by Landlord for such use by Tenant. Tenant shall not
abandon any inoperative vehicles or equipment on any portion of the
Common Area. Tenant shall make no alterations, improvements or
additions to the Common Area.
7
Landlord shall operate, manage, insure, maintain and repair the Common
Area in good order, condition and repair. The manner in which the
Common Area shall be maintained and the expenditures for such
maintenance shall be at the COMMERCIALLY REASONABLE discretion of
Landlord. The cost of such repair, maintenance, operation, insurance
and management, including without limitation, maintenance and repair
of landscaping, irrigation systems, paving, sidewalks, fences, and
lighting, shall be a Common Area Charge and Tenant shall pay to
Landlord its share of such costs as provided in Paragraph 12 below.
12. COMMON AREA CHARGES. Tenant shall pay to Landlord, as additional
rent, upon demand but not more often than once each calendar month,
an amount equal to its Pro Rata Share of the Common Area Charges as
defined in Paragraphs 8.C, 9, 11 of this Lease. Tenant acknowledges
and agrees that the Common Area Charges shall include an additional
five percent (5%) of the actual expenditures in order to compensate
Landlord for accounting, management and processing services.
NOTWITHSTANDING ANYTHING CONTAINED THE LEASE, NO EXPENSES INCURRED
FOR THE FOLLOWING SHALL BE INCLUDED IN OPERATING EXPENSES: (i)
REPAIRS OR OTHER WORK OCCASIONED BY FIRE, WINDSTORM OR OTHER
CASUALTY OF A NATURE COVERED BY INSURANCE REQUIRED TO BE CARRIED BY
LANDLORD PURSUANT TO THE TERMS OF THIS LEASE OR ANY PRESENT OR
FUTURE GROUND LEASE OR DEED OF TRUST COVERING THE PROJECT (EXCEPT
FOR THE COST OF CASH REPAIRS OR OTHER WORK THAT RELATES TO THE
DEDUCTIBLE PORTION OF THE INSURANCE POLICY COVERING SUCH CASUALTY)
OR BY THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN; (ii) LEASING
COMMISSIONS, ACCOUNTANTS' OR ATTORNEYS' FEES, COSTS AND
DISBURSEMENTS AND OTHER EXPENSES INCURRED IN CONNECTION WITH THE
NEGOTIATIONS OR DISPUTES WITH THE TENANTS OR OTHER OCCUPANTS OR
PROSPECTIVE TENANTS OR OTHER OCCUPANTS, OR ASSOCIATED WITH THE
ENFORCEMENT OF ANY LEASES OR DEFENSE OF LANDLORD'S TITLE TO OR
INTEREST IN THE PROJECT OR ANY PART THEREOF; (iii) COSTS (INCLUDING
PERMIT, LICENSE AND INSPECTION FEES) INCURRED IN RENOVATING OR
OTHERWISE IMPROVING OR DECORATING, PAINTING, OR REDECORATING SPACE
FOR TENANTS CONSESSIONAIRIES OR OTHER OCCUPANTS OR VACANT RENTABLE
SPACE; (iv) THE COSTS OF ANY SERVICES SOLD OR PROVIDED TENANTS OR
OTHER OCCUPANTS FOR WHICH LANDLORD IS ENTITLED TO BE REIMBURSED BY
SUCH TENANTS OR OTHER OCCUPANTS AS AN ADDITIONAL CHARGE OR RENTAL
OVER AND ABOVE THE BASIC RENT AND ESCALATIONS PAYABLE UNDER THE
LEASE WITH SUCH TENANT OR OTHER OCCUPANT; (v) EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED ABOVE, COSTS INCURRED BY LANDLORD FOR ANY
ALTERATION, ADDITION OR EQUIPMENT THAT IS CONSIDERED A CAPITAL
IMPROVEMENT OR REPLACEMENT UNDER GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES; (vi) DEPRECIATION AND AMORTIZATION; (vii) EXCEPT TO THE
EXTENT EXPRESSLY PROVIDED ABOVE, COSTS OF A CAPITAL NATURE,
INCLUDING, BUT NOT LIMITED TO CAPITAL IMPROVEMENTS, CAPITAL REPAIRS,
CAPITAL EQUIPMENT, AND CAPITAL TOOLS, ALL AS DETERMINED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES; (viii)
EXPENSES IN CONNECTION WITH SERVICES OR OTHER BENEFITS OF A TYPE
THAT IS NOT PROVIDED TENANT IN REASONABLE PROPORTION TO THE SPACE
LEASED BY TENANT BUT THAT IS PROVIDED TO ANOTHER TENANT OR OCCUPANT;
(ix) COSTS INCURRED DUE TO VIOLATION BY LANDLORD OR ANY OTHER TENANT
OF THE TERMS AND CONDITIONS OF ANY LEASE; (x) INTEREST ON DEBT OR
AMORTIZATION PAYMENTS ON ANY MORTGAGES OR DEEDS OF TRUST OR ANY OTHER
BORROWINGS; (xi) LANDLORD'S GENERAL CORPORATE OVERHEAD AND GENERAL
ADMINISTRATIVE EXPENSES; (xii) ALL ITEMS AND SERVICES FOR WHICH
TENANT OR ANY OTHER TENANT SEPARATELY REIMBURSES LANDLORD OR PAYS
THIRD PERSONS; (xiv) ADVERTISING AND PROMOTIONAL EXPENDITURES; (xv)
PROPERTY MANAGEMENT FEES EXCEEDING THREE PERCENT(3%) OF GROSS
REVENUE; AND (xvi) ANY OTHER EXPENSE THAT UNDER GENERALLY ACCEPTED
ACCOUNTING PRINCIPALS AND PRACTICES WOULD NOT BE CONSIDERED A
MAINTENANCE OR OPERATING EXPENSE.
TENANT MAY AUDIT THE LANDLORD'S ACCOUNTING RECORDS REGARDING
OPERATING EXPENSES AND TAXES AND UPON TEN (10) DAYS' ADVANCE WRITTEN
NOTICE. IF TENANT DISCOVERS AN OVERSTATEMENT OF OPERATING EXPENSES
OR TAXES, LANDLORD SHALL PROMPTLY REFUND ANY AMOUNTS OWED TO TENANT.
IF
8
TENANT DISCOVERS AN OVERSTATEMENT OF OPERATING EXPENSES AND TAXES
WHICH EXCEEDS ONE HUNDRED TEN PERCENT (110%) OF THE ACTUAL OPERATING
EXPENSES AND TAXES, LANDLORD SHALL REIMBURSE TENANT FOR ALL
REASONABLE COSTS AND EXPENSES OF TENANT'S AUDIT.
13. ALTERATIONS. Tenant shall not make, or suffer to be made, any
alterations, improvements or additions in, on, about or to the
Premises or any part thereof, without the prior written consent of
Landlord, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, and
without a valid building permit issued by the appropriate
governmental authority. As a condition to giving such consent,
Landlord may require that Tenant agree to remove any such
alterations, improvements or additions at the termination of this
Lease and to restore the Premises to their prior condition. Unless
Landlord requires that Tenant remove any such alterations,
improvement or addition, and alteration, addition or improvement to
the Premises, except moveable furniture and trade fixtures not
affixed to the Premises, shall become the property of Landlord upon
termination of the Lease and shall remain upon and be surrendered
with the Premises at the termination of this Lease. Without limiting
the generality of the foregoing, all heating, lighting, electrical
(including all wiring, conduit, outlets, drops, buss ducts, main and
subpanels), air conditioning, partitioning, drapery, and carpet
installations made by Tenant regardless of how affixed to the
Premises, together with all other additions, alterations and
improvements that have become an integral part of the Building,
shall be and become the property of the Landlord upon termination of
the Lease, and shall not be deemed trade fixtures, and shall remain
upon and be surrendered with the Premises at the termination of this
Lease.
IT IS HEREBY ACKNOWLEDGED BY LANDLORD THAT TENANT DESIRES TO
CONSTRUCT CERTAIN IMPROVEMENTS AS OUTLINED IN THE FINAL TENANT
IMPROVEMENT PLANS PURSUANT TO EXHIBIT "D" ATTACHED HERETO AND MADE A
PART HEREOF. LANDLORD SHALL DETERMINE UPON FINAL APPROVAL OF THE
FINAL TENANT IMPROVEMENT PLAN THOSE IMPROVEMENTS EXISTING PRIOR TO
CONSTRUCTION OF THE FINAL TENANT IMPROVEMENT PLANS WHICH LANDLORD
SHALL REQUIRE TENANT TO RETURN TO ITS ORIGINAL CONDITION UPON
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE. LANDLORD SHALL MORE
CLOSELY DEFINE THOSE IMPROVEMENTS TO BE RETURNED TO ORIGINAL
CONDITION BY TENANT IN A PLAN ATTACHED HERETO AS EXHIBIT "E".
If, during the term hereof, any alteration, addition or change of
any sort to all or any portion of the Premises is required by law,
regulation, ordinance or order of any public agency, Tenant shall
promptly make the same at its sole cost and expense. If during the
term hereof, any alteration, addition, or change to the Common Area
is required by law, regulation, ordinance or order of any public
agency, AND IS REQUIRED DUE TO TENANT'S SPECIFIC USE OR OCCUPANCY OF
THE PREMISES, Landlord shall make the same and the cost of such
alteration, or change shall be a Common Area Charge and Tenant shall
pay its share of said cost to Landlord as provided in Paragraph 12
above.
14. ACCEPTANCE OF THE PREMISES. By entry and taking possession of the
Premises pursuant to this Lease, Tenant accepts the Premises as
being in good and sanitary order, condition and repair and accepts
the Premises in their condition existing as of the date of such
entry, and Tenant further accepts the tenant improvements to be
constructed by Landlord, if any, as being completed in accordance
with the plans and specifications for such improvements, except for
punch list items. Tenant acknowledges that neither the Landlord nor
Landlord's agents has made any representation or warranty as to the
suitability of the Premises to the conduct of Tenant's business. Any
agreements, warranties or representations not expressly contained
herein shall in no way bind either Landlord or Tenant, and Landlord
and Tenant expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any,
not contained in this Lease. This Lease constitutes the entire
understanding between the parties hereto and no addition to, or
modification of, any term or provision of this Lease shall be
effective until set forth in a writing signed by both Landlord and
Tenant.
9
15. DEFAULT.
A. EVENTS OF DEFAULT. A breach of this Lease shall exist if any
of the following events (hereinafter referred to as "Event of
Default") shall occur:
1. Default in the payment when due of any installment
of rent or other payment required to be made by Tenant
hereunder, where such default shall not have been
cured within three (3) days after written notice of
such default is given to Tenant;
2. Tenant's failure to perform any other term,
covenant or condition contained in this Lease where
such failure shall have continued for THIRTY (30)
DAYS after written notice of such failure is given
to Tenant; UNLESS THE NATURE OF DEFAULT IS SUCH
THAT IT CANNOT BE CURED WITHIN THIRTY (30) DAYS, IN
WHICH CASE TENANT SHALL NOT BE IN DEFAULT PROVIDED
TENANT COMMENCES SAID CURE WITHIN THIRTY (30) DAYS
FROM WRITTEN NOTICE AND DILIGENTLY PURSUES SAID
CURE.
3. Tenant's vacating (WITHOUT WRITTEN NOTICE TO
LANDLORD) or abandonment of the Premises;
4. Tenant's assignment of its assets for the benefit
of its creditors:
5. The sequestration of, attachment of, or execution
on, any substantial part of the property of Tenant
or on any property essential to the conduct of
Tenant's business shall have occurred and Tenant
shall have failed to obtain a return or release of
such property within thirty (30) days thereafter,
or prior to sale pursuant to such sequestration,
attachment or levy, whichever is earlier;
6. Tenant or any guarantor of Tenant's obligations
hereunder shall commence any case proceeding or
other action seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of
debtors, or seek appointment of a receiver,
trustee, custodian, or other similar official for
it or for all or any substantial part of its
property;
7. Tenant or any such guarantor shall take any
corporate action to authorize any of the actions
set forth in Clause 6 above; or
8. Any case, proceeding or other action against Tenant
or any guarantor of Tenant's obligations hereunder
shall be commenced seeking to have an order for
relief entered against it as debtor, or seeking
reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or
its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee,
custodian or other similar official for it or for
all or any substantial part of its property, and
such case, proceeding or other action (i) results
in the entry of an order for relief against it which
is not fully stayed within seven (7) business days
after the entry thereof or (ii) remains undismissed
for a period of forty-five (45) days.
B. REMEDIES. Upon any Event of Default, Landlord shall have the
following remedies, in addition to all other rights and
remedies provided by law, to which Landlord may resort
cumulatively, or in the alternative:
10
1. RECOVERY OF RENT. Landlord shall be entitled to keep this Lease in
full force and effect (whether or not Tenant shall have abandoned the
Premises) and to enforce all of its rights and remedies under this
Lease, including the right to recover rent and other sums as they
become due, plus interest at the Permitted Rate (as defined in
Paragraph 33 below) from the due date of each installment of rent
or other sum until paid.
2. TERMINATION. Landlord may terminate this Lease by giving Tenant
written notice of termination. On the giving of the notice all of
Tenant's rights in the Premises and the Building and Parcel shall
terminate. Upon the giving of the notice of termination, Tenant shall
surrender and vacate the Premises in the condition required by
Paragraph 34, and Landlord may re-enter and take possession of the
Premises and all the remaining improvements or property and eject
Tenant or any of Tenant's subtenants, assignees or other person or
persons claiming any right under or through Tenant or eject some and
not others or eject none. This Lease may also be terminated by a
judgement specifically providing for termination. Any termination
under this paragraph shall not release Tenant from the payment of any
sum then due Landlord or from any claim for damages or rent previously
accrued or then accruing against Tenant. In no event shall any one or
more of the following actions by Landlord constitute a termination of
this Lease:
a. maintenance and preservation of the Premises;
b. efforts to relet the Premises;
c. appointment of a receiver in order to protect Landlord's interest
hereunder;
d. consent to any subletting of the Premises or assignment of this
Lease by Tenant, whether pursuant to provisions hereof concerning
subletting and assignment or otherwise; or
e. any other action by Landlord or Landlord's agents intended to
mitigate the adverse effects from any breach of this Lease by
Tenant.
3. DAMAGES. In the event this Lease is terminated pursuant to
Subparagraph 15.B.2 above, or otherwise, Landlord shall be entitled to
damages in the following sums:
a. the worth at the time of award of the unpaid rent which has been
earned at the time of termination; plus
b. the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided; plus
c. the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds
the amount of such rental loss that Tenant proves could be
reasonably avoided; and
d. any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease, or which in the ordinary
course of things would be likely to result therefrom including,
without limitation, the following: (i) expenses for cleaning,
repairing or restoring the Premises; (ii) expenses for altering,
remodeling or otherwise improving the Premises for the
11
purpose of reletting, including installation of leasehold
improvements (whether such installation be funded by a reduction
of rent, direct payment or allowance to the succeeding lessee, or
otherwise); (iii) real estate broker's fees, advertising costs
and other expenses of reletting the Premises; (iv) costs of
carrying the Premises such as taxes and insurance premiums
thereon, utilities and security precautions; (v) expenses in
retaking possession of the Premises; (vi) attorneys' fees and
court costs; and (vii) any unamortized real estate brokerage
commission paid in connection with this Lease.
e. The "worth at the time of award" of the amounts referred to in
Subparagraphs (a) and (b) of this Paragraph, is computed by
allowing interest at the Permitted Rate. The "worth at the time
of award" of the amounts referred to in Subparagraph (c) of this
Paragraph is computed by discounting such amount at the discount
rate of the Federal Reserve Board of San Francisco at the time of
award plus one percent (1%). The term "rent" as used in this
Paragraph shall include all sums required to be paid by Tenant to
Landlord pursuant to the terms of this Lease.
16. DESTRUCTION. In the event that any portion of the Premises are destroyed or
damaged by an uninsured peril, Landlord or Tenant may, upon written notice
to the other, given within thirty (30) days after the occurrence of such
damage or destruction, elect to terminate this Lease; provided, however,
that either party may, within thirty (30) days after receipt of such
notice, elect to make any required repairs and/or restoration at such
party's sole cost and expense, in which event this Lease shall remain in
full force and effect, and the party having made such election to restore
or repair shall thereafter diligently proceed with such repairs and/or
restoration.
In the event the Premises are damaged or destroyed from any insured peril
to the extent of fifty percent (50%) or more of the then replacement cost
of the Premises, Landlord may, upon written notice to Tenant, given within
thirty (30) days after the occurrence of such damage or destruction, elect
to terminate this Lease. If Landlord does not give such notice in writing
within such period, Landlord shall be deemed to have elected to rebuild or
restore the Premises, in which event Landlord shall, at its expense,
promptly rebuild or restore the Premises to their condition prior to the
damage or destruction and Tenant shall pay to Landlord upon commencement of
reconstruction the amount of any deductible from the insurance policy.
In the event the Premises are damaged or destroyed from any insured peril
to the extent of less than fifty percent (50%) of the then replacement
cost of the Premises, Landlord shall, at Landlord's expense, promptly
rebuild or restore the Premises to their condition prior to the damage or
destruction and Tenant shall pay to Landlord upon commencement of
reconstruction the amount of any deductible from the insurance policy.
In the event that, pursuant to the foregoing provisions, Landlord is to
rebuild or restore the Premises, Landlord shall, within thirty (30) days
after the occurrence of such damage or destruction, provide Tenant with
written notice of the time required for such repair or restoration. If such
period is longer than NINETY (90) days from the issuance of a building
permit, WHICH TIME FOR RECEIPT OF A BUILDING PERMIT SHALL NOT EXCEED TWENTY
(20) DAYS, Tenant may, within thirty (30) days after receipt of Landlord's
notice, elect to terminate the Lease by giving written notice to Landlord
of such election, whereupon the Lease shall immediately terminate. IF
LANDLORD UNDERTAKES SUCH REPAIRS AND IS NOT COMPLETED WITHIN ONE HUNDRED
TWENTY (120) DAYS, TENANT HAS THE RIGHT TO TERMINATE THE LEASE, UPON
WRITTEN NOTICE TO LANDLORD. The period of time for Landlord to complete the
repair or restoration shall be extended for delays caused by the fault or
neglect of Tenant or because of acts of God, acts of publication, labor
disputes, strikes, fires, freight embargoes, rainy or stormy weather,
inability to obtain materials, supplies or fuels, acts of
12
contractors or subcontractors, or delay of contractors or subcontractors
due to such causes, or other contingencies beyond the control of Landlord.
Landlord's obligation to repair or restore the Premises shall not include
restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect; provided, however, that during
any period of repairs or restoration, rent and all other amounts to be paid
by Tenant on account of the Premises and this Lease shall be abated in
proportion to the area of the Premises rendered not reasonably suitable for
the conduct of Tenant's business thereon. Tenant hereby expressly waives
the provisions of Section 1932, Subdivision 2 and Section 1933, Subdivision
4 of the California Civil Code.
17. CONDEMNATION
A. DEFINITION OF TERMS. For the purposes of this Lease, the term (1)
"Taking" means a taking of the Premises or damage to the Premises
related to the exercise of the power of eminent domain and includes a
voluntary conveyance, in lieu of court proceedings, to any agency,
authority, public utility, person or corporate entity empowered to
condemn property; (2)"Total Taking" means the taking of the entire
Premises or so much of the Premises as to prevent or substantially
impair the use thereof by Tenant for the uses herein specified;
provided, however, in no event shall a Taking of less than ten percent
(10%) of the Premises be deemed a Total Taking; (3)"Partial Taking"
means the taking of only a portion of the Premises which does not
constitute a Total Taking; (4)"Date of Taking" means the date upon
which the title to the Premises, or a portion thereof, passes to and
vests in the condemnor or the effective date of any order for
possession if issued prior to the date title vests in the condemnor;
and (5)"Award" means the amount of any award made, consideration paid,
or damages ordered as a result of a Taking.
B. RIGHTS. The parties agree that in the event of a Taking all rights
between them or in and to an Award shall be as set forth herein and
Tenant shall have no right to any Award except as set forth herein.
C. TOTAL TAKING. In the event of a Total Taking during the term hereof
(1) the rights of Tenant under the Lease and the leasehold estate of
Tenant in and to the Premises shall cease and terminate as of the Date
of Taking; (2) Landlord shall refund to Tenant any prepaid rent; (3)
Tenant shall pay Landlord any rent or charges due Landlord under the
Lease, each prorated as of the Date of Taking; (4) Tenant shall
receive from Landlord those portions of the Award attributable to
trade fixtures of Tenant and for moving expenses of Tenant; and (5)
the remainder of the Award shall be paid to and be the property of
Landlord.
D. PARTIAL TAKING. In the event of a Partial Taking during the term
hereof (1) the rights of Tenant under the Lease and leasehold estate
of Tenant in and to the portion of the Premises taken shall cease and
terminate as of the Date of Taking; (2) from and after the Date of
Taking the Monthly Installment of rent immediately prior to the Taking
by a fraction, the numerator of which is the number of square feet
contained in the Premises after the Taking and the denominator of
which is the number of square feet contained in the Premises prior to
the Taking; (3)Tenant shall receive from the Award the portions of the
Award attributable to trade fixtures of Tenant; and (4) the remainder
of the Award shall be paid to and be the property of Landlord.
18. MECHANICS' LIEN. Tenant shall (A) pay for all labor and services performed
for, materials used by or furnished to, Tenant or any contractor employed
by Tenant with respect to the Premises; (B) indemnify, defend, protect and
hold Landlord and the Premises harmless and free from any liens,
13
claims, liabilities, demands, encumbrances, or judgements created or
suffered by reason of any labor or services performed for, materials used
by or furnished to, Tenant or any contractor employed by Tenant with
respect to the Premises; (C) give notice to Landlord in writing five (5)
days prior to employing any laborer or contractor to perform services
related to, or receiving materials for use upon the Premises; and (D)
permit Landlord to post a notice of nonresponsibility in accordance with
the statutory requirements of California Civil Code Section 3094 or any
amendment thereof. It the event Tenant is required to post an improvement
bond with a public agency in connection with the above, Tenant agrees to
include Landlord as an additional obligee.
19. INSPECTION OF THE PREMISES. Tenant shall permit Landlord and its agents to
enter the Premises at any reasonable time, UPON REASONABLE NOTICE, for the
purpose of inspecting the same, performing Landlord's maintenance and
repair responsibilities, posting a notice of non-responsibility for
alterations, additions or repairs and at any time within ninety (90) days
prior to expiration of this Lease, to place upon the Premises, ordinary
"For Lease" or "For Sale" signs.
20. COMPLIANCE WITH LAWS. Tenant shall, at its own cost, comply with all of the
requirements of all municipal, county, state and federal authorities now in
force, or which may hereafter be in force, pertaining to TENANT'S SPECIFIC
use and occupancy of the Premises, and shall faithfully observe all
municipal, county, state and federal law, statutes or ordinances now in
force or which may hereafter be in force. The judgement of any court of
competent jurisdiction or the admission of Tenant in any action or
proceeding against Tenant, whether Landlord be a party thereto or not, that
Tenant has violated any such ordinance or statute in the use and occupancy
of the Premises shall be conclusive of the fact that such violation by
Tenant has occurred.
21. SUBORDINATION. The following provisions shall govern the relationship of
this Lease to any underlying lease, mortgage or deed of trust which now or
hereafter affects the Premises, the Building and/or the Parcel, or
Landlord's interest or estate therein (the "Project") and any renewal,
modification, consolidation, replacement, or extension thereof (a "Security
Instrument").
A. PRIORITY. This Lease is subject and subordinate to Security
Instruments existing as of the Commencement Date. However, if any
Lender so requires, this Lease shall become prior and superior to any
such Security Instrument.
B. SUBSEQUENT SECURITY INSTRUMENTS. At Landlord's election, this Lease
shall become subject and subordinate to any Security Instrument
created after the Commencement Date. Notwithstanding such
subordination, THE HOLDER OF SUCH SECURITY INSTRUMENT SHALL AGREE IN
WRITING, AS A CONDITION OF SUCH SUBORDINATION, THAT TENANT'S RIGHT TO
QUIET POSSESSION OF THE PREMISES SHALL NOT BE DISTURBED SO LONG AS
TENANT IS NOT IN DEFAULT AND PERFORMS ALL OF ITS OBLIGATIONS UNDER
THIS LEASE, UNLESS THIS LEASE IS OTHERWISE TERMINATED PURSUANT TO ITS
TERMS.
C. DOCUMENTS. PROVIDED THAT THE CONDITION TO SUBORDINATION SPECIFIED IN
PARAGRAPH 21.B IS SATISFIED, Tenant shall execute any document or
instrument required by Landlord or any Lender to make this Lease
either prior or subordinate to a Security Instrument, which may
include such other matters as the Lender customarily requires in
connection with such agreements, including provisions that the Lender
not be liable for (1) the return of the Security Deposit unless the
Lender receives it from Landlord, and (2) any defaults on the part of
Landlord occurring prior to the time that the Lender takes possession
of the Project in connection with the enforcement of its Security
Instrument. Tenant's failure to execute any such document or
instrument within ten (10) days after written demand therefor shall
constitute a default by Tenant.
D. TENANT'S ATTORNMENT. Tenant shall attorn (1) to any purchaser of the
Premises at any foreclosure sale or private sale conducted pursuant to
any Security Instrument
14
encumbering the Project; (2) to grantee or transferee designated in
any deed given in lieu of foreclosure; or (3) to the lessor under any
underlying ground lease should such ground lease be terminated.
E. LENDER. The term "Lender" shall mean (1) any beneficiary, mortgagee,
secured party, or other holder of any deed of trust, mortgage, or
other written security device or agreement affecting the Project; and
(2) any lessor under any underlying lease under which Landlord holds
its interest in the Project.
22. HOLDING OVER. This Lease shall terminate without further notice at the
expiration of the Lease Term. Any holding over by Tenant after expiration
shall not constitute a renewal or extension or give Tenant any rights in or
to the Premises except as expressly provided in this Lease. Any holding
over after the expiration with the consent of Landlord shall be construed
to be a tenancy from month to month, at ONE HUNDRED TWENTY-FIVE PERCENT
(125%) of the monthly rent for the last month of the Lease Term, and shall
otherwise be on the terms and conditions herein specified insofar as
applicable.
23. NOTICES. Any notice required or desired to be given under this Lease shall
be in writing with copies directed as indicated below and shall be
personally served or given by mail OR OVERNIGHT DELIVERY. Any notice given
by mail shall be deemed to have been given when forty-eight (48) hours
have elapsed from the time such notice was deposited in the United States
mails, certified and postage prepaid, addressed to the party to be served
with a copy as indicated herein at the last address given by that party
to the other party under the provisions of this Paragraph. At this date of
execution of this Lease, the address of Landlord is:
511 Division Street
Campbell CA 95008
and the address of Tenant is:
81 Vista Montana
San Jose, California 95134
24. ATTORNEY'S FEES. In the event either party shall bring any action or legal
proceeding for damages for any alleged breach of any provision of this
Lease, to recover rent or possession of the Premises, to terminate this
Lease, or to enforce, protect or establish any term or covenant of this
Lease or right or remedy of either party, the prevailing party shall be
entitled to recover as a part of such action or proceeding, reasonable
attorneys' fees and court costs, including attorneys' fees and costs for
appeal, as may be fixed by the court or jury. The term "prevailing party"
shall mean the party who received substantially the relief requested,
whether by settlement, dismissal, summary judgement, judgement, or
otherwise.
25. NONASSIGNMENT.
A. LANDLORD'S CONSENT REQUIRED. Tenant's interest in this Lease is not
assignable, by operation of law or otherwise, nor shall Tenant have
the right to sublet the Premises, transfer any interest of Tenant
therein or permit any use of the Premises by another party, without
the prior written consent of Landlord to such assignment, subletting,
transfer or use, which consent Landlord agrees not to withhold
unreasonably subject to the provisions of Subparagraph B below. A
consent to one assignment, subletting, occupancy or use by another
party shall not be deemed to be a consent to any subsequent
assignment, subletting, occupancy or use by another party. Any
assignment or subletting without such consent shall be void and shall,
at the option of Landlord, terminate this Lease.
15
Landlord's waiver or consent to any assignment or
subletting hereunder shall not relieve Tenant from any
obligation under this lease unless the consent shall so
provide.
B. TRANSFEREE INFORMATION REQUIRED. If Tenant desires to
assign its interest in this Lease or sublet the
Premises, or transfer any interest of Tenant therein,
or permit the use of the Premises by another party
(hereinafter collectively referred to as a "Transfer"),
Tenant shall give Landlord at least thirty (30) days
prior written notice of the proposed Transfer and of
the terms of such proposed Transfer, including, but
not limited to, the name and legal composition of the
proposed transferee, a financial statement of the
proposed transferee, the nature of the proposed
transferee's business to be carried on in the Premises,
the payment to be made or other consideration to be
given to Tenant on account of the Transfer, and such
other pertinent information as may be requested by
Landlord, all in sufficient detail to enable Landlord
to evaluated the proposed Transfer and the prospective
transferee. It is the intent of the parties hereto that
this Lease shall confer upon Tenant only the right to use
and occupy the Premises, and to exercise such other rights
as are conferred upon Tenant by this Lease. The parties
agree that this Lease is not intended to have a bonus value
nor to serve as a vehicle whereby Tenant may profit by a
future Transfer of this Lease or the right to use or
occupy the Premises as a result of any favorable terms
contained herein, or future changes in the market for
leased space. It is the intent of the parties that any
such bonus value that may attach to this Lease shall be
and remain the exclusive property of Landlord.
Accordingly, in the event Tenant seeks to Transfer its
interest in this Lease or the Premises, Landlord shall
have the following options, which may be exercised at
its sole choice without limiting Landlord in the
exercise of any other right or remedy which Landlord
may have by reason of such proposed Transfer:
(1) Landlord may elect to terminate this Lease
effective as of the proposed effective date of the
proposed Transfer and release Tenant from any
further liability hereunder accruing after such
termination date by giving Tenant written notice
of such termination within twenty (20) days after
receipt by Landlord of Tenant's notice of intent
to transfer as provided above. If Landlord makes
such election to terminate this Lease, Tenant
shall surrender the Premises, in accordance with
Paragraph 34, on or before the effective
termination date; or
(2) Landlord may consent to the proposed Transfer on
the condition that Tenant agrees to pay to
Landlord, as additional rent, any and all rents or
other consideration (including key money) received
by Tenant from the transferee by reason of such
Transfer in excess of the rent payable by Tenant
to Landlord under this Lease (less any brokerage
commissions or advertising expenses incurred by
Tenant in connection with the Transfer, INCLUDING
TENANT IMPROVEMENT COSTS). Tenant expressly
agrees that the foregoing is a reasonable
condition for obtaining Landlord's consent to any
Transfer; or
(3) Landlord may reasonably withhold its consent to
the proposed Transfer.
26. SUCCESSORS. The covenants and agreements contained in this
Lease shall be binding on the parties hereto and on their
respective heirs, successors and assigns (to the extent the
Lease is assignable).
27. MORTGAGEE PROTECTION. In the event of any default on the
part of Landlord, Tenant will give notice by registered or
certified mail to any beneficiary of a deed of trust or
mortgagee of a mortgage encumbering the Premises, whose
address shall have been furnished to Tenant, and shall offer
such beneficiary or mortgagee a reasonable opportunity to
cure the default, including time to obtain possession of the
Premises by power of sale or judicial foreclosure, if such
should prove necessary to effect a cure.
16
28. LANDLORD LOAN OR SALE. Tenant agrees promptly following
request by Landlord to (A) execute and deliver to Landlord
any documents, including estoppel certificates presented to
Tenant by Landlord, (i) certifying that this Lease is
unmodified and in full force and effect and the date to
which the rent and other charges are paid in advance, if
any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord
hereunder, and (iii) evidencing the status of the Lease as
may be required either by a lender making a loan to Landlord
to be secured by a deed of trust or mortgage covering the
Premises or a purchaser of the Premises from Landlord and
(B) to deliver to Landlord the financial statement of TENANT
IN FORM AND CONTENT GENERALLY PREPARED BY TENANT, including
a balance sheet and profit and loss statement, for the last
completed fiscal year all prepared in accordance with
generally accepted accounting principles consistently
applied. Tenant's failure to deliver an estoppel
certificate within ten (10) days following such request
shall be an Event of Default under this Lease, PROVIDED
TENANT DOES NOT DELIVER SAID ESTOPPEL CERTIFICATE WITHIN
FIVE (5) DAYS AFTER WRITTEN NOTICE OF DELINQUENCY.
29. SURRENDER OF LEASE NOT MERGER. The voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger and shall, at the option of
Landlord, terminate all or any existing subleases or
subtenants, or operate as an assignment to Landlord of any
or all such sublease or subtenants.
30. WAIVER. The waiver by Landlord or Tenant of any breach of any
term, covenant or condition herein contained shall not be deemed
to be a waiver of any preceding or succeeding breach of the same
or any other covenant or condition herein contained.
31. GENERAL.
A. CAPTIONS. The captions and paragraph headings used in
this Lease are for the purposes of convenience only.
They shall not be construed to limit or extend the
meaning of any part of this Lease, or be used to
interpret specific sections. The word (s) enclosed in
quotation marks shall be construed as defined terms for
purposes of this Lease. As used in this Lease, the
masculine, feminine and neuter and the singular or
plural number shall each be deemed to include the other
whenever the context so requires.
B. DEFINITION OF LANDLORD. The term "Landlord" as used in
this Lease, so far as the covenants or obligations on
the part of Landlord are concerned, shall be limited to
mean and include only the owner at the time in question
of the fee title of the Premises, and in the event of
any transfer or transfers of the title of such fee, the
Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall after
the date of such transfer or conveyance be
automatically freed and relieved of all liability with
respect to performance of any covenants or obligations
on the part of Landlord contained in this Lease,
thereafter to be performed; provided that any funds in
the hands of Landlord or the then grantor at the time
of such transfer, in which Tenant has an interest,
shall be turned over to the grantee. It is intended
that the covenants and obligations contained in this
Lease on the part of Landlord shall, subject as
aforesaid, be binding upon each Landlord, its heirs,
personal representatives, successors and assigns only
during its respective period of ownership.
C. TIME OF ESSENCE. Time is of the essence for the
performance of each term, covenant and condition of
this Lease.
D. SEVERABILITY. In case any one or more of the
provisions contained herein, except for the payment of
rent, shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not
affect any other provision of this Lease, but this
Lease shall be construed as if such invalid, illegal or
unenforceable
17
provision had not been contained herein. This Lease shall
be construed and enforced in accordance with the laws of the
State of California.
E. JOINT AND SEVERAL LIABILITY. If Tenant is more than
one person or entity, each such person or entity shall
be jointly and severally liable for the obligations of
Tenant hereunder.
F. LAW. The term "law" shall mean any judicial decision,
status, constitution, ordinance, resolution,
regulation, rule, administrative order, or other
requirement of any government agency or authority
having jurisdiction over the parties to this Lease or
the Premises or both, in effect at the Commencement
Date of this Lease or any time during the Lease Term,
including, without limitation, any regulation, order,
or policy of any quasi-official entity or body (e.g.,
board of fire examiners, public utility or special
district).
G. AGENT. AS USED HEREIN THE TERM "AGENT" SHALL MEAN,
WITH RESPECT TO EITHER LANDLORD OR TENANT, ITS
RESPECTIVE AGENTS, EMPLOYEES, CONTRACTORS (AND THEIR
SUBCONTRACTORS), AND INVITEES (AND IN THE CASE OF
TENANT, ITS SUBTENANTS).
H. WAIVER OF JURY TRIAL
LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE RIGHT
TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM,
COUNTERCALIM OR CROSS-COMPLAINT IN ANY ACTION
PROCEEDING AND/OR HEARING BROUGHT BY EITHER LANDLORD
AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER
WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED
WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES OR
ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF
ANY REMEDY UNDER ANY LAW, STATUTE, OR REGULATION,
EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.
INITIALS: /s/
------------(LANDLORD)
/s/
------------(TENANT)
32. SIGN. Tenant shall not place or permit to be placed any
sign or decoration on the land or the exterior of the
Building without the prior written consent of Landlord,
WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD. Tenant,
upon written notice by Landlord, shall immediately remove any
sign or decoration that has placed or permitted to be placed on
the land or the exterior of the Building without the prior
written consent of Landlord, and if Tenant fails to so remove
such sign or decoration within five (5) days after Landlord's
written notice, Landlord may enter upon the Premises and remove
said sign or decoration and Tenant agrees to pay Landlord, as
additional rent upon demand, the COMMERCIALLY REASONABLE
cost of such removal. At the termination of this Lease,
Tenant shall remove any sign which it has placed on the
Parcel or Building and shall repair any damage caused by the
installation or removal of such sign.
33. INTEREST ON PAST DUE OBLIGATIONS. Any Monthly Installment
of rent or any other sum due form Tenant under this Lease
which is received by Landlord after the date the same is due
shall bear interest from said due date until paid, at an
annual rate equal to the lesser of (the "Permitted Rate"):
(1) twelve percent (12%); or (2) five percent (5%) plus the
rate established by the Federal Reserve Bank of San
Francisco, as of the Twenty-fifth (25th) day of the month
immediately preceding the due date, on advances to member
banks under Section 13 and 13 (a) of the Federal Reserve
Act, as now in effect or hereafter from time to time
amended. Payment of such interest shall not excuse or cure
any default by Tenant. In addition, Tenant shall pay all
costs and attorneys' fees incurred by Landlord in collection
of such amounts.
18
34. SURRENDER OF THE PREMISES. On the last day of the term
hereof, or on the sooner termination of this Lease, Tenant
shall surrender the Premises to Landlord in their condition
existing as of the Commencement Date of this Lease, EXCEPT
AS PROVIDED IN PARAGRAPH 13 ABOVE AND EXHIBIT "E" ATTACHED
HERETO, ordinary wear and tear excepted, with all originally
painted interior walls washed and other interior walls
cleaned, and repaired or replaced, all carpets shampooed and
cleaned, the air conditioning and heating equipment serviced
and repaired by a reputable and licensed service firm, all
floors cleaned and waxed, all to the reasonable satisfaction
of Landlord. Tenant shall remove all of Tenant's personal
property and trade fixtures from the Premises, and all
property not so removed shall be deemed abandoned by Tenant.
Tenant, at its sole cost, shall repair any damage to the
Premises caused by the removal of Tenant's personal
property, machinery and equipment, which repair shall
include, without limitation, the patching and filling of
holes and repair of structural damage. If the Premises are
not so surrendered at termination of this Lease, Tenant
shall indemnify, defend, protect and hold Landlord harmless
from and against loss or liability resulting from delay by
Tenant in so surrendering the Premises including without
limitation, any claims made by any succeeding tenant or
losses to Landlord due to lost opportunities to lease to
succeeding tenants.
35. AUTHORITY. The undersigned parties hereby warrant that they
have proper authority and are empowered to execute this
Lease on behalf of Landlord and Tenant, respectively.
36. PUBLIC RECORD. This Lease is made subject to all matters of
public record affecting title to the property of which the
Premises are a part. Tenant shall abide by and comply with
all private conditions, covenants and restrictions
("CC&R's") of public record now (TO LANDLORD'S KNOWLEDGE
THERE ARE NO CURRENT CC&R's OF PUBLIC RECORD) or hereafter
affecting the Premises and any amendment thereof, A COPY OF
WHICH LANDLORD SHALL PROVIDE TO TENANT. All assessments and
charges which are imposed, levied or assessed against the
Parcel and Buildings pursuant to the above-described
covenants, conditions and restrictions shall be a Common
Area Charge and Tenant shall pay its share of such
assessments and charges to Landlord as provided in Paragraph
12 above.
37. BROKERS. Each party represents and warrants to the other
that there are no brokerage commissions or fees payable in
connection with this Lease, except to the Commercial
Property Services Company ("CPS") and, with the exception of
CPS, each party hereby agrees to indemnify and hold the
other harmless from and against any brokerage commissions or
fee, obligation, claim or damage (including reasonable
attorneys' fees) paid or incurred by the other party as a
result of a breach of this Paragraph 37. This indemnity
shall survive the expiration or sooner termination of this Lease.
38. LIMITATION ON LANDLORD'S LIABILITY. Tenant, for itself and
its successors and assigns (to the extent this Lease is
assignable), hereby agrees that in the event of any actual,
or alleged, breach or default by Landlord under this lease
that:
(A) Tenant's sole and exclusive remedy against Landlord
shall be as against Landlord's interest in the
Building;
B) No partner or officer of any partner of Landlord shall
be sued or named as a party in a suit or action (except
as may be necessary to secure jurisdiction of the
partnership);
C) No service of process shall be made against any partner
of Landlord (except as may be necessary to secure
jurisdiction of the partnership);
D) No partner of Landlord shall be required to answer or
otherwise plead to any service of process;
E) No Judgment will be taken against any partner of
Landlord;
19
F) Any judgment taken against any partner of Landlord
maybe vacated and set aside at any time nunc pro tunc;
G) No writ of execution will ever be levied against the
assets of any partner of Landlord;
H) The covenants and agreements of Tenant set forth in
this Section 38 shall be enforceable by Landlord and
any partner of Landlord.
39. HAZARDOUS MATERIAL.
A. DEFINITIONS. AS USED HEREIN, THE TERM "HAZARDOUS
MATERIAL" SHALL MEAN ANY SUBSTANCE: (i) THE PRESENCE OF
WHICH REQUIRES INVESTIGATION OR REMEDIATION UNDER ANY
FEDERAL, STATE OR LOCAL STATUTES, REGULATION,
ORDINANCE, ORDER, ACTION, POLICY OR COMMON LAW; (ii)
WHICH IS OR BECOMES DEFINED "HAZARDOUS WASTE,"
"HAZARDOUS SUBSTANCE," POLLUTANT OR CONTAMINANT UNDER
ANY FEDERAL, STATE OR LOCAL STATUTE, REGULATION, RULE
OR ORDINANCE OR AMENDMENTS THERETO INCLUDING, WITHOUT
LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (42 U.S.C. SECTION 9601
ET SEQ.) AND/OR THE RESOURCE CONSERVATION AND RECOVERY
ACT (42 U.S.C. SECTION 6901 ET SEQ.); (iii) WHICH IS
TOXIC, EXPLOSIVE, CORROSIVE, FLAMMABLE, INFECTIOUS,
RADIOACTIVE, CARCINOGENIC, MUTAGENIC, OR OTHERWISE
HAZARDOUS AND IS OR BECOMES REGULATED BY ANY
GOVERNMENTAL AUTHORITY, AGENCY, DEPARTMENT, COMMISSION,
BOARD, AGENCY, OR INSTRUMENTALITY OF THE UNITED STATES,
THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION
THEREOF; (iv) THE PRESENCE OF WHICH ON THE PREMISES
CAUSES OR THREATENS TO CAUSE A NUISANCE UPON THE
PREMISES OR TO ADJACENT PROPERTIES OR POSES OR
THREATENS TO POSE A HAZARD TO THE HEALTH OR SAFETY OF
PERSONS ON OR ABOUT THE PREMISES; (v) THE PRESENCE OF
WHICH ON ADJACENT PROPERTIES COULD CONSTITUTE A TRESPASS
TO LANDLORD OR TENANT; (vi) WITHOUT LIMITATION WHICH
CONTAINS GASOLINE, DIESEL FUEL, OR OTHER PETROLEUM
HYDROCARBONS; (vii) WITHOUT LIMITATION WHICH CONTAINS
POLYCHLORINATED BIPHENYLS (PCBs), ASBESTOS OR UREA
FORMALDEHYDE FOAM INSULATION; OR (viii) WITHOUT
LIMITATION RADON GAS.
B. LANDLORD'S INDEMNITY. LANDLORD SHALL INDEMNIFY,
DEFEND, PROTECT AND HOLD TENANT HARMLESS FROM AND
AGAINST ALL LIABILITIES, CLAIMS, PENALTIES, FINES,
RESPONSE COSTS AND OTHER EXPENSES (INCLUDING, BUT
LIMITED TO, REASONABLE ATTORNEYS' FEES AND CONSULTANTS'
FEES AND COSTS) ARISING OUT OF, RESULTING FROM, OR
CAUSED BY ANY HAZARDOUS MATERIAL USED, GENERATED
DISCHARGED, TRANSPORTED TO OR FROM, STORED OR DISPOSED
OF BY LANDLORD OR ITS AGENTS IN, ON, UNDER, OVER, THROUGH
OR ABOUT THE PREMISES AND/OR THE SURROUNDING REAL
PROPERTY.
C. PERMITTED USE. SUBJECT TO THE COMPLIANCE BY TENANT
WITH THE PROVISIONS OF SUBPARAGRAPHS D, E, F, G, I, J
AND K BELOW, TENANT SHALL BE PERMITTED TO USE AND STORE
ON THE PREMISES THOSE HAZARDOUS MATERIALS LISTED IN
EXHIBIT "F" ATTACHED HERETO IN THE QUANTITIES ATTACHED
SET FORTH IN EXHIBIT "F".
D. HAZARDOUS MATERIAL MANAGEMENT PLAN. PRIOR TO TENANT
USING, HANDLING, TRANSPORTING OR STORING ANY HAZARDOUS
MATERIAL AT OR ABOUT THE PREMISES (INCLUDING, WITHOUT
LIMITATION, THOSE LISTED IN EXHIBIT "F"), TENANT SHALL
SUBMIT TO LANDLORD A HAZARDOUS MATERIALS MANAGEMENT
PLAN ("HMMP") FOR LANDLORD'S REVIEW AND APPROVAL, WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD. THE HMMP
SHALL DESCRIBE: (i) THE QUANTITIES OF EACH MATERIAL TO
BE USED, (ii) THE PURPOSE FOR WHICH EACH MATERIAL IS TO
BE USED, (iii) THE METHOD OF STORAGE OF EACH MATERIAL,
(iv) THE METHOD OF TRANSPORTING EACH MATERIAL TO AND
FROM THE PREMISES AND WITHIN THE PREMISES, (v) THE
METHODS TENANT WILL EMPLOY TO MONITOR THE USE OF THE
MATERIAL AND TO DETECT ANY LEAKS OR POTENTIAL HAZARDS,
AND (vi) ANY OTHER INFORMATION ANY DEPARTMENT OF ANY
GOVERNMENTAL ENTITY (CITY, STATE OR FEDERAL) REQUIRES
PRIOR TO THE ISSUANCE OF ANY REQUIRED PERMIT FOR THE
PREMISES OR DURING TENANT'S OCCUPANCY OF THE PREMISES.
LANDLORD MAY, BUT SHALL HAVE NO OBLIGATION TO
20
REVIEW AND APPROVE THE FOREGOING INFORMATION AND HMO, AND SUCH
REVIEW AND APPROVAL OR FAILURE TO REVIEW AND APPROVE SHALL NOT
ACT AS AN ESTOPPEL OR OTHERWISE WAIVE LANDLORD'S RIGHTS UNDER
THIS LEASE OR RELIEVE TENANT OF ITS OBLIGATIONS UNDER THIS LEASE.
IF LANDLORD DETERMINES IN GOOD FAITH BY INSPECTION OF THE
PREMISES OR REVIEW OF THE HMMP THAT METHODS IN USE OR DESCRIBED
BY TENANT ARE NOT ADEQUATE IN LANDLORD'S GOOD FAITH JUDGEMENT TO
PREVENT OR ELIMINATE THE EXISTENCE OF ENVIRONMENTAL HAZARDS, THEN
TENANT SHALL NOT USE, HANDLE, TRANSPORT, OR STORE SUCH HAZARDOUS
MATERIALS AT OR ABOUT THE PREMISES UNLESS AND UNTIL SUCH METHODS
ARE APPROVED BY THE LANDLORD IN GOOD FAITH AND ADDED TO AN
APPROVED HMMP. ONCE APPROVED BY LANDLORD, TENANT SHALL STRICTLY
COMPLY WITH THE HMMP AND SHALL NOT CHANGE ITS USE, OPERATIONS OR
PROCEDURES WITH RESPECT TO HAZARDOUS MATERIALS WITHOUT SUBMITTING
AN AMENDED HMMP FOR LANDLORD'S REVIEW AND APPROVAL AS PROVIDED
ABOVE.
E. USE RESTRICTIONS. EXCEPT AS SPECIFICALLY ALLOWED IN SUBPARAGRAPH
C ABOVE, TENANT SHALL NOT CAUSE OR PERMIT ANY HAZARDOUS MATERIAL
TO BE USED, STORED, GENERATED, DISCHARGED, TRANSPORTED TO OR
FROM, OR DISPOSED OF IN OR ABOUT THE PREMISES, OR ANY OTHER LAND
OR IMPROVEMENT IN THE VICINITY OF THE PREMISES. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, TENANT, AT ITS SOLE COST, SHALL
COMPLY WITH ALL LAWS RELATING TO THE STORAGE, USE, GENERATION,
TRANSPORT, DISCHARGE AND DISPOSAL BY TENANT OR ITS AGENTS OF ANY
HAZARDOUS MATERIAL. IF THE PRESENCE OF ANY HAZARDOUS MATERIAL ON
THE PREMISES CAUSED OR PERMITTED BY TENANT OR ITS AGENTS RESULTS
IN CONTAMINATION OF THE PREMISES OR ANY SOIL, AIR, GROUND OR
SURFACE WATERS UNDER, THROUGH, OVER, ON, IN OR ABOUT THE
PREMISES, TENANT AT ITS EXPENSE, SHALL PROMPTLY TAKE ALL ACTIONS
NECESSARY TO RETURN THE PREMISES AND/OR THE SURROUNDING REAL
PROPERTY TO THE CONDITION EXISTING PRIOR TO THE APPEARANCE OF
SUCH HAZARDOUS MATERIAL.
F. TENANT INDEMNITY. TENANT SHALL DEFEND, PROTECT, HOLD HARMLESS AND
INDEMNIFY LANDLORD AND ITS AGENTS AND LENDERS WITH RESPECT TO ALL
ACTIONS, CLAIMS, LOSSES (INCLUDING, DIMINUTION IN VALUE OF THE
PREMISES),FINES, PENALTIES, FEES,(INCLUDING, BUT NOT LIMITED TO,
REASONABLE ATTORNEYS' AND CONSULTANTS' FEES AND COSTS) COSTS,
DAMAGES, LIABILITIES, REMEDIATION COSTS, INVESTIGATIONS COSTS,
RESPONSE AND OTHER EXPENSES ARISING OUT OF, RESULTING FROM, OR
CAUSED BY ANY HAZARDOUS MATERIAL USED, GENERATED DISCHARGED,
TRANSPORTED TO OR FROM, STORED, OR DISPOSED OF BY TENANT OR ITS
AGENTS IN, ON, UNDER, OVER, THROUGH OR ABOUT THE PREMISES AND/OR
THE SURROUNDING REAL PROPERTY. TENANT SHALL NOT SUFFER ANY LIEN
TO BE RECORDED AGAINST THE PREMISES AS A CONSEQUENCE FOR THE
DISPOSAL OF ANY HAZARDOUS MATERIAL ON THE PREMISES BY THE TENANT
OR ITS AGENTS, INCLUDING ANY SO CALLED STATE, FEDERAL OR LOCAL
"SUPER FUND" LIEN RELATED TO THE "CLEAN UP" OF ANY HAZARDOUS
MATERIAL IN, OVER, ON, UNDER THROUGH, OR ABOUT THE PREMISES.
G. COMPLIANCE. TENANT SHALL IMMEDIATELY NOTIFY LANDLORD OF ANY
INQUIRY, TEST, INVESTIGATION, ENFORCEMENT PROCEEDING BY OR
AGAINST TENANT OR THE PREMISES CONCERNING ANY HAZARDOUS MATERIAL.
ANY REMEDIATION PLAN PREPARED BY OR ON BEHALF OF TENANT MUST BE
SUBMITTED TO LANDLORD PRIOR TO CONDUCTING ANY WORK PURSUANT TO
SUCH PLAN AND PRIOR TO SUBMITTAL TO ANY APPLICABLE GOVERNMENT
AUTHORITY AND SHALL BE SUBJECT TO LANDLORD'S CONSENT. TENANT
ACKNOWLEDGES THAT LANDLORD, AS THE OWNER OF THE PROPERTY, AT
ITS ELECTION, SHALL HAVE THE SOLE RIGHT TO NEGOTIATE, DEFEND,
APPROVE AND APPEAL ANY ACTION TAKEN OR ORDER ISSUED WITH REGARD TO ANY
HAZARDOUS MATERIAL BY ANY APPLICABLE GOVERNMENT AUTHORITY.
H. ASSIGNMENT AND SUBLETTING. IT SHALL NOT BE UNREASONABLE FOR
LANDLORD TO WITHHOLD ITS CONSENT TO ANY PROPOSED ASSIGNMENT OR
SUBLETTING IF (i) THE PROPOSED ASSIGNEE'S OR SUBTENANT'S
ANTICIPATED USE OF THE PREMISES INVOLVES THE STORAGE, GENERATION,
DISCHARGE,
21
TRANSPORT, USE OR DISPOSAL OF ANY HAZARDOUS MATERIAL NOT
PERMITTED UNDER SUBPARAGRAPH C ABOVE; (ii) IF THE PROPOSED
ASSIGNEE OR SUBTENANT HAS BEEN REQUIRED BY ANY PRIOR
LANDLORD, LENDER, OR GOVERNMENT AUTHORITY TO "CLEAN UP" OR
REMEDIATE ANY HAZARDOUS MATERIAL AND HAS FAILED TO PROMPTLY
DO SO; (iii) IF THE PROPOSED ASSIGNEE OR SUBTENANT IS
SUBJECT TO INVESTIGATION OR ENFORCEMENT ORDER OR PROCEEDING
BY ANY GOVERNMENTAL AUTHORITY IN CONNECTION WITH THE USE,
GENERATION, DISCHARGE, TRANSPORT, DISPOSAL OR STORAGE OF ANY
MATERIAL AMOUNT OF HAZARDOUS MATERIAL; PROVIDED THAT (ii)
AND (iii) WILL NOT APPLY IN THE CASE OF A FORTUNE 500
COMPANY.
I. SURRENDER. UPON THE EXPIRATION OR EARLIER TERMINATION OF THE
LEASE, TENANT, AT ITS SOLE COST, SHALL REMOVE ALL HAZARDOUS
MATERIALS FROM THE PREMISES THAT TENANT OR ITS AGENTS INTRODUCED
TO THE PREMISES. IF TENANT FAILS TO SO SURRENDER THE PREMISES,
TENANT SHALL INDEMNIFY, PROTECT, DEFEND AND HOLD LANDLORD
HARMLESS FROM AND AGAINST ALL DAMAGES RESULTING FROM TENANT'S
FAILURE TO SURRENDER THE PREMISES AS REQUIRED BY THIS PARAGRAPH,
INCLUDING, WITHOUT LIMITATION, ANY ACTIONS, CLAIMS, LOSSES,
LIABILITIES, FEES (INCLUDING, BUT NOT LIMITED TO, REASONABLE
ATTORNEY'S FEES AND CONSULTANTS' FEES AND COSTS),FINES, COSTS,
PENALTIES, OR DAMAGES IN CONNECTION WITH THE CONDITION OF THE
PREMISES INCLUDING, WITHOUT LIMITATION, DAMAGES OCCASIONED BY THE
INABILITY TO RELET THE PREMISES OR A REDUCTION IN THE FAIR MARKET
AND/OR RENTAL VALUE OF THE PREMISES BY REASON OF THE EXISTENCE OF
ANY HAZARDOUS MATERIALS IN, ON OVER, UNDER, THROUGH OR AROUND THE
PREMISES.
J. RIGHT TO APPOINT CONSULTANT. LANDLORD SHALL HAVE THE RIGHT TO
APPOINT A CONSULTANT TO CONDUCT AN INVESTIGATION TO DETERMINE
WHETHER ANY HAZARDOUS MATERIAL IS BEING USED, GENERATED,
DISCHARGED, TRANSPORTED TO OR FROM, STORED OR DISPOSED OF IN, ON,
OVER, THROUGH, OR ABOUT THE PREMISES, IN AN APPROPRIATE AND
LAWFUL MANNER. IF TENANT HAS VIOLATED ANY LAW OR COVENANT IN THIS
LEASE REGARDING THE USE, STORAGE OR DISPOSAL OF HAZARDOUS
MATERIALS ON OR ABOUT THE PREMISES, TENANT SHALL REIMBURSE
LANDLORD FOR THE COST OF SUCH INVESTIGATION. TENANT, AT ITS
EXPENSE, SHALL COMPLY WITH ALL REASONABLE RECOMMENDATIONS OF THE
CONSULTANT REQUIRED TO CONFORM TENANT'S USE, STORAGE OR DISPOSAL
OF HAZARDOUS MATERIALS TO THE REQUIREMENTS OF APPLICABLE LAW OR
TO FULFILL THE OBLIGATIONS OF TENANT HEREUNDER.
K. HOLDING OVER. IF ANY ACTION OF ANY KIND IS REQUIRED TO BE TAKEN
BY ANY GOVERNMENTAL AUTHORITY TO CLEAN-UP, REMOVE, REMEDIATE OR
MONITOR HAZARDOUS MATERIAL (THE PRESENCE OF WHICH IS THE RESULT
OF THE ACTS OR OMISSIONS OF TENANT OR ITS AGENTS) AND SUCH ACTION
IS NOT COMPLETED PRIOR TO THE EXPIRATION OR EARLIER TERMINATION
OF THE LEASE, TENANT SHALL BE DEEMED TO HAVE IMPERMISSIBLY HELD
OVER UNTIL SUCH TIME AS SUCH REQUIRED ACTION IS COMPLETED, AND
LANDLORD SHALL BE ENTITLED TO ALL DAMAGES DIRECTLY OR INDIRECTLY
INCURRED IN CONNECTION WITH SUCH HOLDING OVER, INCLUDING WITHOUT
LIMITATIONS, DAMAGES OCCASIONED BY THE INABILITY TO RE-LET THE
PREMISES OR A REDUCTION OF THE FAIR MARKET AND/OR RENTAL VALUE OF
THE PREMISES.
L. EXISTING ENVIRONMENTAL REPORTS. TENANT HEREBY ACKNOWLEDGES
THAT IT HAS RECEIVED, READ AND REVIEWED THE REPORTS AND TEST
RESULTS DESCRIBED IN EXHIBIT "G" ATTACHED HERETO AND MADE A
PART HEREOF (THE "EXISTING ENVIRONMENTAL REPORTS").
M. PROVISIONS SURVIVE REPORTS. THE PROVISIONS OF THIS
PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF
THIS LEASE.
22
N. CONTROLLING PROVISIONS. THE PROVISIONS OF THIS PARAGRAPH 39 ARE
INTENDED TO GOVERN THE RIGHTS AND LIABILITIES OF THE LANDLORD AND
TENANT HEREUNDER RESPECTING HAZARDOUS MATERIALS TO THE EXCLUSION OF
ANY OTHER PROVISIONS IN THIS LEASE THAT MIGHT OTHERWISE BE DEEMED
APPLICABLE. THE PROVISIONS OF THIS PARAGRAPH 39 SHALL BE
CONTROLLING WITH REPECT TO ANY PROVISIONS IN THIS LEASE THAT ARE
INCONSISTENT WITH THIS PARAGRAPH 39.
40. OPTION TO EXTEND.
Tenant shall be granted on (1) option to extend the term of this lease
through and including October 29, 1998. Such extension to be on the
same terms and conditions as the initial term, including the Base
Monthly Rent. It shall be a precedent to the exercise of this option
that Tenant shall not be in default under this Lease, BEYOND ANY
APPLICABLE CURE PERIOD, at the time of the exercise of the option.
Tenant shall exercise said option only by written notice delivered to
exercise of the option. Tenant shall exercise said option only by
written notice delivered to Landlord at least ONE HUNDRED TWENTY (120)
days prior to the expiration of the original term of this lease.
41. RIGHTS OF FIRST REFUSAL.
A. In the event this Lease is in full force and effect and provided
Tenant is not in default under the terms and conditions of the Lease,
BEYOND ANY APPLICABLE CURE PERIOD, Landlord hereby grants Tenant the
Right of First Refusal (First Right), second to AG Associates' Option
to Expand, the premises as defined herein. Said First Right shall be
secondary to AG Associates Option to Expand, as defined in their lease
dated July 21, 1995.
B. Furthermore, Tenant shall have the Right of First Refusal ("Second
Right") to lease any space designated in Exhibit A, as "site plan",
Landlord shall notify Tenant in writing of the terms for which
Landlord is willing to lease the subject premises.
C. The foregoing rights shall be contingent upon Tenant's responding
to Landlord in writing of Tenant's intent to exercise said right(s) of
first refusal within TWO (2) BUSINESS DAYS of notification to Tenant
by Landlord of an impending offer on said subject premises. Tenant
shall have two (2) BUSINESS DAYS to accept the terms and conditions as
written by Landlord and to agree in writing to lease the subject
premises. If Landlord has not received a written response to lease
the subject premises from Tenant within TWO (2) BUSINESS DAYS of
Tenant's receipt of an offer from Landlord, then it shall be deemed
that Tenant is waiving its right to lease the subject space, and
Landlord will be free to lease to the original offering party, on the
same terms and conditions as were originally offered to Tenant.
23
D. Neither Right of First Refusal, as outlined above, shall apply to
extensions of leases for space with Tenants who are in occupancy of
buildings designated in the Exhibit A site plan as of the commencement
date of this Lease (the "Existing Leases"). As of the date of this
Lease, the tenants under Existing Leases are: Reply Corporation and AG
Associates, Inc. Only AG Associates ha sa right to lease 4415 Fortran
Court, which is superior to the Rights of First Refusal granted to
Tenant herein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth below.
TENANT: LANDLORD:
Novellus Systems, Inc., a California South Bay/Fortran, a California
corporation limited partnership
By: /s/ Unintelligible By: /s/ Unintelligible
------------------------------ ------------------------------
Title: Treasurer Title: General Partner
--------------------------- ---------------------------
Dated: 1/31/96 Dated: 1/31/96
--------------------------- ---------------------------
24
San Jose Technology Park
Office/R&D/Manufacturing Space,
[MAP]
[LOGO]
EXHIBIT "B"
LEGAL DESCRIPTION:
All that real property situate in the City of San Jose, County of Santa Clara,
State of California, described as follows:
Beginning at the Southwesterly corner of that certain 31.74 acre tract of land
described in the deed from The First National Bank of San Jose, a corporation,
to F. W. Zanker and Curtner Zanker, dated May 5, 1939, recorded May, 8, 1939 in
Book 934 Official Records, page 16, Santa Clara County Records, in the Northerly
line Alviso-Milpitas Road, thence from said point of beginning N. 89 deg. 35' E.
630.30 feet to the Southeasterly corner thereof; thence along the Easterly line
of said 31.74 acre tract for the three following courses and distances: N. 1
deg. 13' E. 768.90 feet, N. 0 deg. 57' E. 597.96 feet and N. 0 deg. 31' E.
149.97 feet to the Southeasterly corner of that certain 9.316 acre tract of land
described in the deed from F. W. Zanker, et al, to B. S. Brazil, a single man,
dated October 25, 1943, recorded November 16, 1943 in Book 1176 Official
Records, page 21, Santa Clara County Records; thence S. 89 deg. 35' W. along the
Southerly line of said 9.316 acre tract 651.78 feet to the Southwesterly corner
thereof in the Westerly line of said 31.74 acre tract; thence S. 0 deg. 08' W.
along said last mentioned line 1512.88 feet to the point of beginning.
Excepting therefrom that portion thereof conveyed to the City of San Jose, a
municipal corporation, recorded September 2, 1985 in Book J828, page 1719,
Official Records, described as follows:
Beginning at the Southeasterly corner of that certain 31.74 acre tract of land
described in the deed from the First National Bank of San Jose, a corporation,
to F. W. Zanker and Curtner Zanker, dated May 5, 1939, recorded May 8, 1939 in
Book 934 Official Records, page 16, Santa Clara County Records, said point being
on the Northerly line of Alviso-Milpitas Road, thence leaving said point of
beginning along the Easterly line of said 31.74 acre parcel N. 1 deg. 13' E.
30.00 feet to the true point of beginning of the parcel herein being described;
thence leaving said true point of beginning and said Easterly line along the
following courses and distances; From a tangent bearing of N. 88 deg. 47' 00"
W. along a curve to the right with a radius of 50.00 feet, through a central
angle of 126 deg. 52' 12" for an arc length of 110.71 feet to a point on reverse
curvature; from a tangent bearing of N. 38 deg. 05' 12" E. along a curve to the
left with a radius of 50.00 feet, through a central angle of 36 deg. 52' 12" for
an arc length of 32.18 feet; N. 1 deg. 13' 00" E. 361.13 feet; N. 0 deg. 57' 00"
E. 597.93 feet; N. 0 deg. 31' 52" E. 18.69 feet; along a tangent curve to the
left with a radius of 40.00 feet, through a central angle of 90 deg. 56' 58" for
an arc length of 63.50 feet to a point on a line parallel with and distant 90.00
feet Southerly, measured at right angles from the Southerly line of that certain
9.316 acre parcel of land described in the deed from F. W. Zanker, et al, to B.
S. Brazil, recorded November 16, 1943 in Book 1176 of Official Records, at page
21, Santa Clara County Records; thence along said parallel line, S. 89 deg. 34'
54" W. 579.99 feet to a point on the Westerly line of said 31.74 acre parcel of
land; thence leaving said parallel line along said Westerly line, No. 0 deg. 06'
10" E. 90.00 feet to the Southwesterly corner of the hereinabove described 9.316
acre parcel; thence leaving said Westerly line along the Southerly line of said
9.316 acre parcel, N. 89 deg. 34' 54" E. 651.24 feet to the Southeasterly corner
thereof, said corner lying in said Easterly line of the hereinabove
EXHIBIT "B"
described 31.74 acre parcel; thence along said Easterly line the following
course and distances: S. 0 deg. 31' 52" W. 149.98 feet; S. 0 deg. 57; 00" W.
598.11 feet and S. 1 deg. 13' 00" W. 598.11 feet and S. 1 deg. 13' 00" W. 471.20
feet to the true point of beginning.
ALSO EXCEPTING THEREFROM all that portion conveyed to the State of California by
Grant Deed recorded August 31, 1994 in Book N 579, Page 2028, Official Records,
described as follows:
Being a portion of that certain parcel of land described in the Deed from Ray H.
Collishaw and Earlyn R. Collishaw, husband and wife, to William L. Marocco, a
single man, recorded May 4, 1982 in Book G 762 of Official Records at Page 218,
Santa Clara County Records.
Beginning at the southeast corner of said parcel conveyed to Marocco; thence
from said Point of Beginning, along the southerly line of said parcel conveyed
to Marocco N. 89 deg. 01' 16" W. 626.45 feet to the southwest corner of said
parcel conveyed to Marocco; thence along the westerly line of said parcel
conveyed to Marocco N. 1 deg. 13' 13" E. 227.77 feet; thence leaving said
westerly line, from a tangent bearing of S. 67 deg. 46' 42" E., along a curve to
the right with a radius of 275.00 feet, through a central angle of 18 deg. 08'
37" for an arc length of 87.08 feet; thence S. 49 deg. 38' 05" E., 103.64 feet;
thence along a tangent curve to the left with a radius of 275.00 feet, through a
central angle of 34 deg. 57' 21" for an arc length of 167.78 feet; thence S. 84
deg. 35' 26" E. 318.98 feet to a point in the easterly line of said parcel
conveyed to Marocco ng said easterly line S. 2 deg. 20' 03" W.,
31.97 feet to the Point of Beginning.
ARB No. 15-30-9 & 9.1
EXHIBIT "C"
IMPROVEMENTS
Prior to the commencement of the lease, Landlord shall be make the following
improvements to the Premises ("Landlord's Improvements"):
A) Replace ceiling insulation in rear manufacturing area;
B) Replace areas of carpet that are worn and irreparably soiled;
C) Repaint interior walls, as necessary; and,
D) Repair any broken glass, cracks in tile floor of manufacturing area and
make additional cosmetic repairs as reasonably necessary, to be agreed upon
by Landlord in advance.
Tenant shall be allowed to construct certain interior improvements (the
"Improvements") in the Premises prior to the commencement of the Term of this
Lease in accordance with the terms of Paragraph 13 of the Lease and in
accordance with the plans which shall be approved by Landlord prior to
commencement of construction and shall become an exhibit to the Lease
hereto ("Approved Plans"). Landlord shall determine and notify Tenant prior to
approval and commencement of construction of the Approved Plans, which
Improvements Landlord will require Tenant to remove or return to original
condition upon expiration or earlier termination of the Lease.
EXHIBIT D
FINAL TENANT IMPROVEMENT PLANS
(To Be Provided)
EXHIBIT E
PLAN SHOWING IMPROVEMENTS TO BE RETURNED TO
ORIGINAL CONDITION UPON LEASE EXPIRATION
(To Be Provided)
EXHIBIT F
HAZARDOUS MATERIALS MANAGEMENT PLAN
(To Be Provided by Tenant)
EXHIBIT "G"
1. ATT report dated July 9, 1992: Preliminary (Phase I) Environmental Site
Assessment Update for the Property at 4405 - 4445 Fortran Court, San Jose,
California. (Project No. 929368).
2, SECOR International Incorporated report dated July 10, 1995: Phase I
Environmental Site Assessment Report - 4405, 4415, 4425, 4435 and 4445
Fortran Drive, San Jose, CA (Job No. 70076-001-01).